(HC) Gregory W. Stewart v. J. Macomber, No. 1:2018cv00338 - Document 4 (E.D. Cal. 2018)

Court Description: ORDER DIRECTING Clerk of Court to Assign District Court Judge; new case number is 1:18-cv-00338 DAD-EPG (HC); FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED as an unauthorized successive petition re 1 Petition for Writ of Habeas Corpus filed by Gregory W. Stewart ; referred to Judge Drozd, signed by Magistrate Judge Erica P. Grosjean on 03/19/18. Objections to F&R due by 4/23/2018(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, Case No. 1:18-cv-00338-EPG-HC Petitioner, 12 13 v. 14 FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS J. MACOMBER, 15 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. In the instant petition, Petitioner challenges his 1994 conviction in 19 the Merced County Superior Court for sale of a controlled substance. As Petitioner has sought 20 federal habeas relief with respect to the challenged conviction numerous times previously, the 21 undersigned recommends that the petition be dismissed pursuant to 28 U.S.C. § 2244(b) as an 22 unauthorized successive petition. 23 I. 24 DISCUSSION 25 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 26 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 27 to file a response, if it “plainly appears from the petition and any attached exhibits that the 28 petitioner is not entitled to relief in the district court.” A federal court must dismiss a second or 1 1 successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The 2 court must also dismiss a second or successive petition raising a new ground unless the petitioner 3 can show that (1) the claim rests on a new, retroactive, constitutional right, or (2) the factual 4 basis of the claim was not previously discoverable through due diligence, and these new facts 5 establish by clear and convincing evidence that but for the constitutional error, no reasonable 6 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. 7 § 2244(b)(2)(A)–(B). However, it is not the district court that decides whether a second or 8 successive petition meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 9 10 this section is filed in the district court, the applicant shall move in the appropriate court of 11 appeals for an order authorizing the district court to consider the application.” In other words, a 12 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 13 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 14 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 15 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 16 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). In the instant petition, Petitioner challenges his 1994 conviction in the Merced County 17 18 Superior Court for sale of a controlled substance. (ECF No. 1 at 1).1 Petitioner previously sought 19 federal habeas relief in this Court with respect to the same conviction numerous times. See 20 Stewart v. McGrath, No. 1:00-cv-05452-SMS (dismissed as untimely); Stewart v. Sullivan, No. 21 1:06-cv-01400-WMW (dismissed as successive); Stewart v. Adams, No. 1:09-cv-00685-GSA 22 (same); Stewart v. Adams, No. 1:09-cv-02212-JLT (same); Stewart v. Macomber, No. 1:10-cv23 00954-AWI-DLB (same); Stewart v. Macomber, No. 1:11-00814-DLB (same); Stewart v. 24 Macomber, No. 1:12-cv-00594-JLT (same); Stewart v. Macomber, No. 1:14-cv-00266-AWI25 MJS (same); Stewart v. Macomber, No. 1:15-cv-00051-SKO (same); Stewart v. Macomber, No. 26 1:15-01592-SMS (same); Stewart v. Macomber, No. 1:16-cv-00948-EPG (same); Stewart v. 27 Macomber, No. 1:16-cv-01428-EPG (same); Stewart v. Macomber, No. 1:17-cv-00415-AWI28 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 1 JLT (same); Stewart v. Macomber, No. 1:17-cv-00683-SAB (same); Stewart v. Macomber, No. 2 1:17-cv-01100-EPG (same); Stewart v. Macomber, No. 1:17-cv-01420-EPG (same); Stewart v. 3 Macomber, No. 1:18-cv-00012-LJO-MJS (same).2 The Court finds that the instant petition is “second or successive” under 28 U.S.C. 4 5 § 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a 6 first habeas petition for untimeliness presents a ‘permanent and incurable’ bar to federal review 7 of the underlying claims,” and thus renders subsequent petitions “second or successive”). 8 Because Petitioner has already filed numerous petitions for writ of habeas corpus regarding his 9 1994 conviction, he cannot file another petition in this Court regarding the same conviction 10 without first obtaining permission from the United States Court of Appeals for the Ninth Circuit. 11 Here, Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file 12 his successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 13 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 14 at 157. 15 II. 16 RECOMMENDATION AND ORDER Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas 17 18 corpus be DISMISSED as an unauthorized successive petition. Further, the Court DIRECTS the Clerk of Court to assign a District Court Judge to the 19 20 present matter. This Findings and Recommendation is submitted to the assigned United States District 21 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 27 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 28 (9th Cir. 1980). 3 1 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 2 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 3 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 4 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 IT IS SO ORDERED. Dated: March 19, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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